IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-00550-SCT

LAURA GIPSON KILPATRICK

v.

JOHNNIE MAX KILPATRICK

DATE OF JUDGMENT: 03/27/97

TRIAL JUDGE: HON. KENNETH BARKLEY ROBERTSON

COURT FROM WHICH APPEALED: NESHOBA COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: LAWRENCE PRIMEAUX

ATTORNEYS FOR APPELLEE: DANIEL P. SELF, JR.

DONALD J. KILGORE

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: AFFIRMED IN PART; REVERSED AND

REMANDED IN PART - 1/14/99

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 2/23/99

BEFORE PRATHER, C.J., BANKS AND WALLER, JJ.

WALLER, JUSTICE, FOR THE COURT:

SUMMARY

¶1. Appellant, Laura Gipson Kilpatrick ("Laura"), filed a Complaint for Divorce against her husband

Appellee, Johnnie Max Kilpatrick ("Max"), in the Chancery Court of Neshoba County Mississippi, on

October 5, 1993. Laura filed an Amended Complaint for Divorce on September 30, 1994. On February

13, 1997, Special Chancellor Kenneth B. Robertson rendered a decision granting Max and Laura a

divorce on the ground of irreconcilable differences.

¶2. Aggrieved by the Special Chancellor's decision, Laura appealed assigning two errors:

I. WHETHER CHANCELLOR WAS MANIFESTLY IN ERROR IN DENYING LAURA

KILPATRICK AN AWARD OF PERIODIC ALIMONY, SO THAT HIS DECISION

SHOULD BE REVERSED.

II. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR AND APPLIED

AN ERRONEOUS LEGAL STANDARD IN THE DIVISION OF MARITAL PROPERTY
AND AWARD OF LUMP SUM ALIMONY SO THAT HIS DECISION SHOULD BE

REVERSED.

PROCEDURAL HISTORY

¶3. Because Max is a practicing attorney in the district, both sitting chancellors in the Sixth Chancery Court

District recused themselves by an Order dated December 20, 1994. This Court appointed Kenneth B.

Robertson of Pascagoula as a Special Chancellor on March 2, 1995. On October 2, 1995, Max and Laura

entered into a Consent to Divorce on the Ground of Irreconcilable Differences listing eighteen contested

issues summarized below.

1. Who should have use, ownership and possession of the former marital residence and adjoining lot

and who should pay expenses associated with the home;

2. The form, amount, duration and manner of alimony, if any;

3. Who should have use, ownership, and possession of a 1991 Lincoln Town car, who should pay the

debt and operating expenses on the car and whether Max should furnish Laura with a replacement

vehicle of comparable value;

4. Who should have use, ownership and possession of Cabin #178, titled in Max's name, at the

Neshoba County Fairgrounds;

5. Whether Max should pay the joint debts of Max and Laura;

6. Equitable division of the real property and financial assets of Max and Laura and whether the

equitable distribution theory of law adopted by the Mississippi Supreme Court is unconstitutional

under the Constitutions of the United States and the State of Mississippi;

7. Whether Max should pay Laura a reasonable attorney's fee and all costs of court;

8. Whether Max should have a credit against any equitable division for (1) the college expenses paid

for Max's and Laura's children and (2) additional tax liability for Laura's refusal to file a joint tax

return;

9. Whether any proceeds derived from fees earned by Max in the case of Jackson v. General

Motors should be subject to equitable division and whether any expenses or after-raised claims of

that case or claims from the Estate of Cliff Finch should be charged to any share awarded to Laura;

¶4. Laura and Max appeared for trial on November 20, 1995 and December 19 and 20, 1995.

¶5. After taking the matter under advisement(1), on February 13, 1997, Special Chancellor Robertson

rendered a decision granting Max and Laura a divorce on the ground of irreconcilable differences and

approving Max's and Laura's agreement in which Max assumed responsibility for their son's college

education expenses. Special Chancellor Robertson, addressing the contested issues, then issued findings

summarized below.

1. Equitable distribution is not unconstitutional.
2. Laura was granted title and ownership of the marital home and adjoining residential lot and all

contents of the home. Max was to pay all mortgage payments due on the home. Max was also to pay

all ad valorem taxes and insurance on the home through 2000. Laura was responsible for all other

costs associated with the home.

3. Laura was granted title to the 1991 Lincoln Town car free and clear of all debts.

4. Laura was granted her IRA accounts, her state retirement account and her life insurance policies

free and clear of any claim by Max.

5. Max was to pay Laura the lump sum of $20,000 plus the sum of $5,000 per year for three years,

beginning in January, 1998. Max was to also contribute $5,500 toward Laura's attorney's fees and

pay all costs of court.

6. The remainder of the property in dispute, including the law office building and equipment, furniture

and fixtures; the Fair Cabin #178; the house at Route 6, Box 27-B, Philadelphia; the farm equipment

and stock in Kilpatrick Farms, Inc.; Max's military and state retirement; and the business and

personal checking and savings accounts was granted to Max and he was to hold Laura harmless from

any debt owing thereon.

FACTS OF THE CASE

¶6. Max and Laura were married to each other on August 5, 1966 and they were divorced from each other

the first time on May 20, 1972 in Neshoba County Chancery Court. The chancery court set aside the

divorce decree and reinstated their marriage on March 20, 1974, after Max and Laura filed a joint petition

for reinstatement. They lived together from that date until September 1, 1993, when they separated

permanently and finally. Max and Laura had three children during their marriage, all of whom were

emancipated by the time the trial concluded.

¶7. At the time of their first marriage, Laura was in her final year of college at Mississippi College for

Women. Laura completed her practice teaching and received a B.S. degree in speech pathology and

speech therapy. Max graduated from Mississippi State University with a degree in accounting the next year.

During the early years of their marriage, Max and Laura lived in several cites, Columbus, Clinton,

Birmingham, and Corinth, where Max worked as an accountant and Laura worked as a speech pathologist.

Their first child was also born during these early years.

¶8. In 1970 the family moved to Oxford so Max could attend law school at the University of Mississippi.

Laura worked as a speech pathologist in the Oxford schools to support the family. Max contributed to the

family income with his salary from a part time job in the library. During this period, their second child was

born.

¶9. In the fall of 1971, Max was elected to the Mississippi State Legislature. Laura helped with the

campaign by distributing materials, soliciting votes and doing other things necessary for the campaign. In

November 1971, Max encouraged Laura to leave her job in Oxford and move with their children to

Philadelphia where she took a job at the Choctaw Indian Reservation and used her income to support the

household. During this period of separation, Max's and Laura's first divorce was granted.

¶10. Max began practicing law in Philadelphia in 1974. After Max opened his law office, Max and Laura
reconciled and had the original divorce judgment set aside. Shortly after this time, their third child was born.

Max and Laura lived together from that time until their separation, September 1, 1993.

¶11. Since approximately 1975, Laura has worked for the Neshoba County School System as a speech

pathologist. During her employment with the school system, Laura participated in the Public Employees'

Retirement System of Mississippi (PERS). Laura valued her PERS account at its cash surrender value of

$33,416.

¶12. In 1989, Max became involved in a personal injury case, styled Jackson v. General Motors. He

worked on this case until 1994 when he received his share of the proceeds. Max's gross income from this

case was $1,271,725. In addition to expenses associated with the case, Max listed various claims on the

total settlement amount, including pending lawsuits brought by other attorneys involved in the case and the

circuit clerk of Lafayette County. For 1994 Max listed his net income from his law practice as $848,039.

This amount included his net income from the Jackson v. General Motors case and approximately $157,

000 in other income from his law practice that year.

DISCUSSION OF LAW

I. WHETHER CHANCELLOR WAS MANIFESTLY IN ERROR IN DENYING LAURA

KILPATRICK AN AWARD OF PERIODIC ALIMONY, SO THAT HIS DECISION

SHOULD BE REVERSED.

II. WHETHER THE CHANCELLOR WAS MANIFESTLY IN ERROR AND APPLIED

AN ERRONEOUS LEGAL STANDARD IN THE DIVISION OF MARITAL PROPERTY

AND AWARD OF LUMP SUM ALIMONY SO THAT HIS DECISION SHOULD BE

REVERSED.

STANDARD OF REVIEW

¶13. "This Court will not disturb the findings of a chancellor when supported by substantial evidence unless

the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard

was applied." Herring Gas Co. v. Whiddon, 616 So. 2d 892, 894 (Miss. 1993). "`Under the standard of

review utilized to review a chancery court's findings of fact, particularly in the areas of divorce, alimony and

child support, this Court will not overturn the court on appeal unless its findings were manifestly wrong.'"

Mizell v. Mizell, 708 So. 2d 55, 64 (Miss. 1998) (quoting Tilley v. Tilley, 610 So. 2d 348, 351 (Miss.

1992)).

EQUITABLE DISTRIBUTION

¶14. After reviewing the evidence presented, Special Chancellor Robertson divided the couple's property

as outlined above. Special Chancellor Robertson also awarded Laura lump sum alimony totaling $35,000

with an initial payment of $20,000 plus $5,000 a year for three years beginning January, 1998.

¶15. In Ferguson v. Ferguson, we directed the chancery courts to evaluate the division of marital assets

by following a nonexclusive list of eight guidelines and "to support their decisions with findings of fact

and conclusions of law for purposes of appellate review." Ferguson v. Ferguson, 639 So. 2d 921,

928 (Miss. 1994) (emphasis added). In the present case, there are no specific findings in the record to
show Special Chancellor Robertson considered the Fergusonguidelines and applied those guidelines to the

evidence.

¶16. In Johnson v. Johnson, we outlined the steps involved in the process of applying the equitable

distribution factors listed in Ferguson. Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994). First,

the chancellor is to classify the parties' assets as marital or non-marital based on our decision in Hemsley v.

Hemsley, 639 So. 2d 909 (Miss. 1994). Second, the chancellor is to value and equitably divide the marital

property employing the Ferguson factors as guidelines, in light of each party's non-marital property.

Johnson, 650 So. 2d at 1287. Third, if the marital assets, after equitable division and in light of the parties'

non-marital assets, will adequately provide for both parties, then "no more need be done." Id. Finally, if an

equitable division of marital property, considered with each party's non-marital assets, leaves a deficit for

one party, then alimony should be considered. Id.

¶17. Max argues in his brief"[i]t is obvious that the Chancellor considered the Fergusonguidelines in his

award. . . ." As evidence to support this argument, Max cites one of the chancellor's findings.

The Court is aware of the Defendants [sic] argument that this ruling or finding will place the value of

the Plaintiffs [sic] unincumbered [sic] assets at a value greater than his, however the Court finds the

same is just and reasonable.

Laura argues in her brief, despite abundant evidence in the record upon which the Special Chancellor could

have based a Ferguson analysis, the record does not reflect that he did so. She urges this Court to render

a judgment "adjusting the equities to effect an equitable result."

¶18. Assuming all of Max's and Laura's property is marital property,(2) below is a list of the values of the

property awarded to Max and Laura with debt owed thereon taken into account.

LAURA'S PROPERTY Net Asset Value

Marital home & adjoining lot 114,000 debt paid before divorce

Contents of Home 5,600

Lincoln Town Car 15,150 debt paid before divorce

Laura's IRA 14,655

Laura's PERS Account 33,416

Laura's Life Insurance 4,721

Total net value $187,542

MAX'S PROPERTY

A. Law Office

Office Building 18,866 75,000 - 56,134 debt
Office Furniture & Equipment 19,500

B. Farm, Farm Stock, Equipment (3)

Cash 1,170

Cabin (18,000) 62,000 - 80,000 note - cabin & land

44 acres @$300 13,200

172 acres @ $450 77,400

Equipment equity 1,334 3,000 - 2,666 note on bush hog

Cows (15,000) 13,000 - 28,000 note on cows

C. Other Real Property & Furnishing

House at Rt. 6 B 25,148 96,000 - 70,852 debt

Furnishings for Rt. 6 B 9,000

Condominium & Furnishings 8,943 33,000 - 26,000 debt +1,943

Fair Cabin & Furnishings 11,527 30,000 - 18,473 debt

D. Other

Max's Retirement 7,277

Automobiles 28,600

Total net value $188,965

¶19. What is absent from the Special Chancellor's findings is any consideration of the $848,039 in net

income reported by Max for tax year 1994. Without findings from the Chancellor concerning this income or

use of income, we cannot determine if the distribution of property outlined above meets the standards of

equitable distribution required by Ferguson. On remand the Chancellor is to make specific findings as to

what happened to the 1994 income and then to review the distribution of property in light of those findings.

There may well be a reasonable explanation, but from the record all of this income was not used to retire

debt on marital property or pay income taxes.

ALIMONY

¶20. After an equitable division of martial property, the final step the chancellor must complete is a

consideration of the need, if any, for alimony. Johnson, 650 So. 2d at 1287. In awarding alimony, the

chancellor is to consider the twelve factors listed in Armstrong v. Armstrong, 618 So. 2d 1278, 1280

(Miss. 1993):
1. The income and expenses of the parties;

2. The health and earning capacities of the parties;

3. The needs of each party;

4. The obligations and assets of each party;

5. The length of the marriage;

6. The presence or absence of minor children in the home, which may require that one or both of the

parties either pay, or personally provide, child care;

7. The age of the parties;

8. The standard of living of the parties, both during the marriage and at the time of the support

determination;

9. The tax consequences of the spousal support order;

10. Fault or misconduct;

11. Wasteful dissipation of assets by either party; or

12. Any other factor deemed by the court to be "just and equitable" in connection with the setting of

spousal support.

Armstrong, 618 So. 2d at 1280.

¶21. Laura argues the Special Chancellor erred by not awarding her periodic alimony. A wife is generally

entitled to periodic alimony when her income is inadequate to allow her to maintain her standard of living

and when her husband is able to pay. Heigle v. Heigle, 654 So. 2d 895, 898 (Miss. 1995). The factors a

chancellor should consider when determining the appropriate amount of alimony include "`not only the

reasonable needs of the wife but also the right of the husband `to lead as normal a life as reasonably

possible with a decent standard of living''." Massey v. Massey, 475 So. 2d 802, 803 (Miss. 1985) (quoting

Hopton v. Hopton, 342 So. 2d 1298, 1300 (Miss.1977)).

¶22. The Special Chancellor awarded Laura $35,000 in lump sum alimony. In 1994, the year Max's

income from the Jackson v. General Motors case was reported, Max listed on his 1994 tax return an

adjusted gross income of $839,051. Laura's income for the same year was $25,759. For the year before

the Jackson v. General Motors case Max listed his adjusted gross income as $389,961 on his 1993 tax

return. Laura's income for the same year was $24,253.

¶23. Max left the marriage with his law practice intact and a history of high earnings. Laura left the marriage

with no means of income other than her teaching job. Without other findings based on the Armstrong

factors, the award of only $35,000 in lump sum alimony by the Special Chancellor is not justified based on

the apparent disparities of the parties' incomes. This award evidences an abuse of discretion.

CONCLUSION
¶24. We affirm the Special Chancellor's granting of divorce, but reverse and remand on the distribution of

property and granting of alimony. On remand the Chancellor is directed to reconsider his distribution of

property giving special consideration to Max's income for 1994, and its effect, if any, on the value and debt

of the marital property. After reconsideration, he should adjust the distribution of marital property as equity

demands if justified by his findings. After reconsideration of the distribution of property, the Chancellor is

also to revisit the issue of alimony in light of the differential in income and the other factors discussed

enunciated in Armstrong. We also direct the Chancellor to support his decision with specific findings in the

record.

¶25. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS AND ROBERTS, JJ., CONCUR.

McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION. SMITH AND MILLS, JJ.,

NOT PARTICIPATING.

McRAE, JUSTICE, DISSENTING:

¶26. By authorizing re-consideration of the marital property value of Max's income for 1994, which is

primarily comprised of attorneys fees derived from the Jackson v. General Motors case, the majority

apparently concedes that case fees are income. Yet, the majority opens the floodgates to the pillaging of the

public, in general, and of fee-reliant attorneys, in particular, while imprudently modifying the Mississippi

Rules of Professional Conduct by which attorneys' ethics are governed. Indeed, the majority attempts to

state that income in general is marital property rather than part of the alimony calculation. Such a position is

preposterous. Accordingly, I must dissent.

¶27. Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994), defines marital assets as "property

acquired or accumulated during the marriage." Attorney's fees are income effected from personal

professional activity. Hence, attorneys fees are not marital assets under Hemsley. If such fees, indeed

income in general, are marital assets, what remains of the alimony doctrine? Income is to be divided in an

alimony calculation. See Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993). Today the

majority melds the doctrines of equitable distribution and alimony. I pity the future of divorce law.

¶28. Further, the majority, by so categorizing income, in general, and attorneys' fees, in particular, as marital

assets, creates a greater fiasco. Indeed, the majority opens the floodgates to the plundering of the

professional integrity of attorneys , who will be required to split fees with laypersons contrary to the ethics

rule that prohibits attorneys from sharing legal fees with laypersons. See Miss. R. Prof. Conduct 5.4(a).

Given today's mandate by the majority, it is foreseeable that defense attorneys who handle tobacco or

asbestos cases will have to split their professionally-earned fees as assets that are truly their sole income.

Bond lawyers who put together a sale, which is a one-time transaction, face a similar predicament of having

to split those one-time professional fees. Other professionals such as architects, physicians, and Realtors

will be subjected to the same scrutiny. Indeed, with the direction given by today's Court, how can we again

criticize attorneys when they wish to split fees with laypersons for "referral purposes"? We cannot. Today,

the unfortunate precedent is set.
¶29. Today's majority sets the stage for combining professional fees with marital assets. Hence, I can do

nothing but dissent.

Endnotes:

1. When Special Chancellor Robertson failed to file an opinion within six months after trial, on July 18,

1996, Max and Laura jointly appealed to this Court for a Writ of Mandamus to order the Special

Chancellor to render a decision. By order of this Court on September 30, 1996, Special Chancellor

Robertson was directed to render a decision within thirty days. This Court extended the deadline for a

decision from Special Chancellor Robertson and by an Order dated February 5, 1997, directed Special

Chancellor Robertson to render a decision within ten days.

2. This assumption is valid because it appears from the record neither party brought much property into the

marriage and neither party acquired any property not co-mingled with marital property.

3. Max's calculation of the value of Kilpatrick Farms included a debt of $64,876 owed to Max personally

by Kilpatrick Farms. This debt is not included in the farm figures.